Law School Branding and the Illusion of Choice

10. ‘Selling the dream’: Law School Branding and the Illusion of Choice Margaret Thornton and Lucinda Shannon Introduction In a little over 20 years, the number of law schools in Australia has tripled – from 12 to 36. The catalyst for this revolutionary change occurred in 1988 when by a stroke of the pen the then Minister for Employment, Education and Training, John Dawkins, declared all Colleges of Advanced Education (CAEs) to be part of a new unified national system of higher education with the option of becoming universities (Dawkins 1988). The intention was to increase school retention rates and enhance the calibre of the Australian workforce so that Australia might be more competitive on the world stage. Despite the transformation of the tertiary sector, which resulted in 16 new universities in four years, government funding was not proportionately increased (Marginson and Considine 2000, 28–9). Indeed, such phenomenal growth could not be sustained from the public purse. To generate additional revenue, the Dawkins reforms heralded a shift away from free higher education to a user-pays regime in which students themselves assumed partial responsibility for the cost of their education (Marginson and Considine 2000, 56–7). While initially resisted, the new regime was quickly normalised. Public acceptance was ensured by, firstly, eschewing the language of fees and referring to the charge euphemistically as a ‘contribution’ (the Higher Education Contribution Scheme or HECS); secondly, setting the initial cost for domestic undergraduate students at a modest A$1,800 per annum across the board; and, thirdly, making HECS repayable only when a graduate reached a certain income threshold. Of course, once a fee regime is put in place, it is inevitable that fees will be ratcheted up, and disciplinary differences soon 157 THROUGH A GLASS DARKLY emerged, with law being charged at the top rate. The shift from an élite to a mass system, supported by a user-pays philosophy, dramatically changed the character of legal education (Thornton 2012). CAEs were formerly teaching-only institutions which generally did not include professional programs, but once they had become universities they were anxious to legitimise their new-found status by offering professional degrees. As universities had already been partly deregulated,1 they were free to choose what courses they wished to offer – with the exception of medicine. To boost the knowledge economy, it was hoped they would offer courses with clear career paths. Law was a popular choice. In addition to attracting well-credentialed students, university administrators believed that a law degree required few resources. Indeed, it was a longstanding myth that law could be taught ‘under a gum tree’ (Martin Report 1964, II, 57). The persistence of this myth ignored the notable pedagogical shift that had occurred in legal education away from the large-lecture model of course delivery (the ‘sage on the stage’) to an active learning model of small-group discussion, critique and interrogation of legal knowledge – a superior pedagogical model, but one requiring substantially more resources. Many new law schools were established in the early to mid-1990s, not only in the new universities (for example, Southern Cross, Western Sydney and Victoria) but also in the ‘third generation’ universities established in the 1960s (for example, Flinders, Griffith, and La Trobe). The parlous financial situation in which all the law schools soon found themselves compelled them to take in more and more students to meet budgetary shortfalls. This set in train an endless spiral and caused them to espouse once again the outdated but cheaper pedagogies that had so recently been cast aside. Income generation and cost cutting became the primary concern of law deans everywhere. In a volatile climate beset with risk, a law school, particularly a new school, could not passively wait for students to apply for admission. Through a range of marketing tools and the creation of a distinctive ‘brand’, law schools set out to woo students/customers and persuade them to choose their institution over others. This chapter examines the ways in which Australian law schools present themselves to the world as attractive and desirable in a competitive market. The first port of call for prospective customers is likely to be the law school website, on which we propose to focus. 1 The Commonwealth Tertiary Education Commission was abolished in 1987 and its functions transferred to the Department of Education, Employment and Training (Marginson and Considine 2000, 31). 158 10 . ‘SELLING THE DREAM’ While purporting to present themselves as distinctive, law schools tend to emphasise similar things in their advertising. Attractiveness and desirability are construed in terms of consumerism, with advertising often redolent of a tourist brochure. The student who undertakes a law degree is promised employability, prestige and wealth; he or she is also assured of a glamorous and fun-filled career. As a result, the serious and difficult aspects associated with the study of law are sloughed off, as well as the centrality of justice and critique. But first a word about competition policy in legitimating the pre-eminent role of the market in reshaping the legal academy. Competition policy In accordance with the values of social liberalism, the prevailing political philosophy extols the role of the market, rather than the state, as the arbiter of the good. Freedom for the individual within the market is the fundamental social good, according to neoliberal guru Friedrich Hayek (1960, 92–3), as it fosters competition. The philosophy of Hayek, which was applied to universities by his colleague Milton Friedman, assisted by Rose Friedman (1962; 1980), underpins the commodification of higher education in Australia and is particularly relevant to legal education. Friedman was of the view that students who enrolled in professional courses should not be the recipients of public funding because it was assumed they would subsequently earn high incomes. The loan system that Friedman advocated, which would be repayable throughout the taxation system (Friedman 1962, 105), was precisely the one that was implemented in Australia. Competition, however, is by no means peculiar to higher education, for it is an inescapable dimension of the ‘market metanarrative’ (Roberts 1998), which permeates every aspect of contemporary society. Competition became an official plank of Australian government policy with the Hilmer Report (1993), the main recommendations of which were incorporated into the Competition Policy Reform Act 1995 (Cth). In accordance with the philosophy of Hayek and Friedman, competition policy endorses the view that the operation of the vectors of supply and demand within a free market is the best way for society to generate greater efficiencies in production as well as a superior outcome for consumers. In other words, the effect of the marketising reforms required universities to reposition themselves as the ‘simulacra of business’ (Sauntson and Morrish 2011, 73). Prior to the Dawkins reforms, Australian law schools had been largely immune from competition. For decades there was only one law school in each state, but the landscape was to change irrevocably. The proliferation of law schools has inevitably meant increased competition for ‘market share’, particularly for top- performing students. Competition also means that some schools will succeed while others will founder. To date, however, no Australian law school has 159 THROUGH A GLASS DARKLY been compelled to close. This is because the most vulnerable – the regional universities – are generally located in marginal electorates. It is nevertheless within a competitive social-Darwinist environment that law schools operate, perpetually haunted by the possibility of third-ratedness and non-success. As the now classic work of Ulrich Beck (1992, 19) has established, risk is the inescapable corollary of entrepreneurialism and the production of wealth. The ideological underpinnings of the transformed environment have been secured by the emergence of a new marketised language in which it is accepted that students are ‘consumers’ or ‘customers’ in a ‘higher education market’ and universities are ‘higher education providers’ delivering a ‘product’. Like consumers generally, the consumers of higher education are expected to exercise choice as to which law school ‘product’ would best equip them with the means of realising their dreams. To the student/customer/consumer, legal education is the ‘bridge to [the] displaced meanings’ of an idealised future career (McCracken 1988, 110). That is, legal education is understood as the pursuit of knowledge not for its own sake as articulated by John Henry Newman (1966), one of the most famous theorists of the idea of the university, but because of what it promises. But how are students to know which law school to choose? The standardising imperative While there is a modicum of diversity in Australian law schools (Johnstone and Vigaendra 2003, 56), there is simultaneously a propulsion towards homogeneity which constitutes a particular marketing challenge, as sameness is anathema to the ideology of choice. The imperatives in favour of sameness are not mere abstract exhortations but prescripts emanating from the profession and the state, underpinned by the rhetoric of competition at the international level. First, as a professional discipline, law is subject to the requirements of the admitting

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